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Q: Copyright law is as old as the Constitution, and hasn't it been working fine? Why did Congress need to change the rules of the game by passing the Digital Millennium Copyright Act (DMCA) in 1998?

A: The DMCA updates U.S. copyright law for the digital age, gives copyright holders and prosecutors tools to fight cyber crime, and encourages the development of new technologies and business models on the Internet. The DMCA did not change existing copyright law or rights such as fair use.

Theft of copyrighted content on the Internet  as the popularity of peer-to-peer software like Gnutella for stealing software, movies, music, and other digital content illustrates  is a growing problem. Software piracy alone costs the U.S. economy more than 100,000 jobs and billions of dollars in wages and tax revenue every year, according to the Business Software Alliance. Via the DMCA, Congress responded to this piracy threat and gave copyright holders much-needed legal protections as an incentive to make their works available online.

Q: Does the DMCA squelch innovation, as some critics have suggested?

A: The DMCA was enacted three years ago, and we have seen only a handful of civil cases and a single criminal indictment under the DMCA since then. There is no demonstrable evidence that innovation has been harmed. Indeed, use of the Internet continues to grow, and consumers have never enjoyed more choice online. In a report released August. 29, 2001, the U.S. Copyright Office agreed, concluding that the DMCA has not had any adverse effect on the operation of markets for copyrighted works (the report makes only one small recommendation regarding streaming music).

The legislative history of the DMCA makes clear that one purpose of the law is to encourage innovation. In committee hearings, members of Congress expressed their desire to give the creators of digital content the freedom to explore new Internet-based business models knowing that the fruits of their creative labors will be protected. As a result, consumers have access to a wide and growing range of entertaining and useful digital content, as well as choices in software licensing, such as Application Service Provider (ASP) business models and software subscriptions.

Q: Does the DMCA harm copyright "fair use"?

A: The DMCA does nothing to upset existing fair use rules, which serve to promote and protect academic inquiry and other activity that might otherwise infringe copyright. In fact, in seeking to preserve the existing balance between copyright protection and fair use, Congress overrode concerns from copyright industries and permitted in the DMCA certain acts of circumvention on technical protections applied to copyright works. Section 1201 of the DMCA contains a whole range of exceptions, including those for:

Libraries

Educational institutions

Security testing

Encryption research

Software reverse engineering

As a further safeguard, in the DMCA, Congress charged the Library of Congress with conducting a periodic rulemaking to grant additional exceptions if fair use is adversely impacted in the future.

Q: Did Congress pass the DMCA without giving it proper consideration, as some have suggested?

A: The DMCA was exhaustively debated for two years and examined closely by four congressional committees before it was enacted in 1998. It enjoyed bipartisan support and was ultimately approved by Congress by a unanimous vote. The original text of the law originated from a Democratic Commerce Department and was then refined and expanded upon by a Republican Congress. The DMCA is carefully balanced to reflect the interests of academics, researchers, librarians, educators, telecommunications providers, and copyright holders, all of whom had the opportunity to air their concerns and points of view during the law's formation. Congress weighed the arguments and made its decision.

Q: How does the U.S. DMCA differ from laws of other countries?

A: Congress's enactment of the DMCA was required by two 1996 international copyright treaties in which the United States joined 50 other nations to ensure that national copyright laws were modernized to serve in a digital era. The DMCA is the U.S. implementation of these treaties, and has served as a model for measures putting these treaties into effect worldwide. For example, the European Union adopted substantially similar rules to the DMCA earlier this year, and the 15 EU member states now must enact new laws that meet this EU standard within 18 months. Adobe supports the DMCA and the enactment of similar laws worldwide.

Q: Should the commercial sale of a computer program like ElcomSoft's be illegal?

There is ample legal precedent for outlawing tools that facilitate criminal acts. Possession of locksmith tools or "slim jims" (used to open locked car doors), for example, is illegal in many states, and citizens accept the need for such laws. Congress has also outlawed the private sale of satellite TV descramblers, which enable people to steal subscription TV service. Again, few consumers would argue that these sorts of devices should be legitimately available. Via the DMCA, Congress has merely banned the digital analogs of these kinds of burglary tools.